Ibrahim v State of New South Wales (South Western Sydney Local Health District) - [2021] NSWPICMP 92

DETERMINATION OF APPEAL PANEL
CITATION:	Ibrahim v State of New South Wales (South Western Sydney Local Health District) [2021] NSWPICMP 92
APPELLANT:	Mona Ibrahim (Khammo)
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
APPEAL PANEL:	Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris
DATE OF DECISION:	16 June 2021
CATCHWORDS:	WORKERS COMPENSATION- AMS made an assessment of 7% WPI as a result of a psychiatric injury deemed to have occurred on 28 August 2017; statement of the appellant dated 10 March 2021 not received on the appeal as not probative; whether error demonstrated in respect of PIRS categories social and recreational activities and social functioning; Held- no error demonstrated; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 March 2021 Mona Ibrahim (the appellant) made an application to appeal against a medical assessment (the appeal) to the Registrar of the Workers Compensation Commission (the Commission). The medical assessment was made by Dr Douglas Andrews, Approved Medical Specialist (the AMS) and issued on 11 February 2021.
The respondent to the appeal is the State of New South Wales (South Western Sydney Local Health District) (the respondent).
After this MAC was issued and before the appeal in this matter was allocated to the Medical Appeal Panel (MAP), the New South Wales Workers Compensation Commission was abolished (cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act from 1 March 2021. The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). Relevantly, the Approved Medical Specialist in the former Workers Compensation Commission became Medical Assessors (MA) in the Personal Injury Commission. However, as at the time when the MAC was issued, Dr Andrews bore the title of Approved Medical Specialist and in this decision will be referred to by his former title “Approved Medical Specialist”.
The appellant relies on the following grounds of appeal under s 327(3) of the 1998 Act:
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant developed a primary psychological injury in the course of her employment as patient information officer when she was subjected to bullying and harassment after suffering an injury on 24 November 2015.
The matter was referred to the AMS, Dr Douglas Andrews, on 22 December 2020 for assessment of whole person impairment (WPI) of the appellant’s psychological/psychiatric disorder attributable to the injury deemed to have occurred on 28 August 2017.
The AMS examined the appellant on 8 February 2021 and assessed 8% WPI in respect of the psychological/psychiatric disorder. The AMS made a deduction of one-tenth for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was 7% as a result of the injury deemed to have occurred on 28 August 2017.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested that she be re-examined by a MA, who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Statement of the appellant dated 10 March 2021.
The appellant submitted that the evidence was relevant to facts in issue. The appellant, however, made no submissions as to whether the evidence was not available and could not reasonably have been obtained prior to the AMS assessment. The Appeal Panel accepts that the statement in so far as it relates to events that occurred in the examination by the AMS could not reasonably have been obtained before the AMS’s assessment. However, the parts of the statement, in so far as they related to social activities and friends, could have been obtained prior to the AMS’s assessment.
The respondent noted that it did not follow that the outcome of the AMS’s assessment would have been different if he had the additional statement from the appellant, as an AMS is required to use his clinical judgment on the day of the assessment, and the appellant had given a number of histories to medical examiners, including Dr Bisht, consistent with the history recorded by the AMS on the date of assessment.
The respondent argued that s 327 (3)(b) of the 1998 Act is not an avenue for a party to re-submit their medical evidence in a different form in order to cavil with the findings made by the AMS on the day of assessment. The respondent referred to the decision of Cortese v Cumberland Ford Pty Ltd & Ors [2011] NSWSC 1260 in which Adamson J observed at [15]: “...it cannot be the case that evidence falls within s 327 (3) (b) if all it does is to restate evidence given before on the basis that if it had been put in a different way it would have been accepted.”
The respondent submitted that the appellant’s additional statement was an attempt to resubmit evidence, in a different form, which had already been provided to the AMS. Further, s 327 (3) (b) allowed further evidence to be admitted “if it could not reasonably have been obtained by the appellant before that medical assessment”. The respondent argued that had the appellant’s circumstances changed in the three months since her last independent examination with Dr Bisht in August 2020, or in the time she provided her statement in support of the Application to Resolve a Dispute (ARD) in December 2020, there was no reason why a supplementary statement could not have been furnished prior to the examination by the AMS nor was there any reason why more contemporaneous clinical notes or a report of Dr Smith were not relied upon given he has remained her treating specialist at all times, including immediately prior to the AMS examination.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).’
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
The Appeal Panel noted that the history provided in the statement dated 10 March 2021 was in some respects inconsistent with the history provided by the appellant in her statement dated 1 December 2020.
In the statement dated 10 March 2021, the appellant stated that she had only one friend and only spent time with her mother, sister and the one friend. She said that she did not regularly go to social outings with the three friends and was usually prompted to go out. She said that she did not go out to a restaurant every two weeks and “used to go” to family gatherings and events organised by friends. In the statement dated 1 December 2020, the appellant said that she had two close friends whom she visited and they encouraged her to visit every two – three days. She said that before 2017 she used to socialise a lot and go to gatherings, parties and dinner and now rarely participated in those activities. She said that she ‘vacuums only once every two to three weeks when my friends are coming to visit’. She said that she had a relationship “last year” for six months but she pushed him away because she could not trust him and she always wanted to stay at home.
There was no explanation for the change in history since 1 December 2020 provided in the statement dated 10 March 2021. The Appeal Panel considered on balance that it was unlikely that there had been any significant change in the short period of time since 1 December 2020.
Although the statement of the appellant in part came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the 1998 Act . The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an AMS or of Medical Assessors ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a Medical Assessor in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the Medical Assessor’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination. Further, it should also be noted that the applicant’s evidence concerning the history of her friends and social activities would have little, if any, probative value. The Appeal Panel decided that the statement of the applicant was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of the applicant dated 10 March 2021.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessors for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificates given by the Medical Assessors that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions, include the following:
·        The AMS has regrettably failed to accurately record matters which are germane to the assessment of the individual Psychiatric Impairment Rating Scale (PIRS) categories, the consequence of which flows through to an incorrect overall WPI assessment.

·        The AMS has noted the role that pharmaceuticals played in controlling the appellant's insomnia (among other symptoms), but neglected to apply an adjustment for treatment as required pursuant to paragraph 1.32 of the Guidelines (or, in the alternative, failed to give reasons for failing to apply an adjustment based on the AMS' discretion).

·        The appellant seeks orders that the MAC be revoked and that a MAP be appointed for the purpose of conducting a re-examination of her impairment.

·        The AMS fell into demonstrable error in regard to his assessment of the PIRS categories of "social functioning" and "social and recreational activities". The error is the application of the wrong class (class 2, in preference to class 3, which is more appropriate).

·        The error arises because the AMS took an incorrect history. He stated that: "Ms Ibrahim reported to me that she has three close friends she sees frequently, and that she goes out to a restaurant every couple of weeks. This social activity is more consistent with a Class 2."

·        There was an error in: (a) transcribing a response given by the appellant regarding the PIRS categories of social functioning and social and recreational activities, when she did not say what was recorded by the AMS; (b) giving a history of recent symptomatology that was manifestly incorrect having regard to the extensive treatment accounts of Dr Clayton Smith; or alternatively (c) the answers recorded by the AMS were so out of step with the evidence of the appellant over a long period of time and in consultation with Dr Smith that it constituted a demonstrable error.

·        The AMS in regard to social activities recorded: “ She has maintained close friendships with three women but has lost other friends because of social withdrawal and said, ‘I have pushed them away.’ She remains close to her family." The appellant stated that this was not a correct history and she had only one friend with whom she is no longer close. This was central to the effect of her injury on her social functioning and sufficient to shift the category classification from 2 to 3.

·        On page 3 of the MAC, the AMS again noted "she is close to 3 friends, whom she sees regularly". The appellant said this was incorrect, and that she did not give this history and that it therefore constituted demonstrable error.

·        Apart from the appellant denying having given the incorrect history recorded, there were clinical records which the AMS failed to contend with and which support the appeal on this point. The appellant referred to the records of Dr Clayton Smith (treating psychiatrist) dated 7 August 2020, 11 March 2020, 22 April 2020 and 20 May 2020.

·        These records were not the long term history of an injured worker with mild social impairment. It was apparent that the appellant was not performing at a level 2 in terms of social and recreational activities, but was and is far more severely impaired than that. A fair reading of Dr Smith's long term account of the appellant suggests she was socially isolating herself, participating socially through social media only, was heavily reliant on her sister for her limited socialisation and which subsequently ceased when her sister moved away, and that she saw only one or two friends exceedingly infrequently (i.e. one time in a month, and for long periods apparently not at all).

·        Dr Smith recorded a category 3 for the appellant's social functioning and recreational activities, on the basis of his longitudinal analysis of the appellant's functioning. Dr Smith was in a better position to classify the appellant's function, having treated her for a long time before issuing his report, and also to appreciate the extent to which her condition had ossified.

·        While a difference between doctors (even an Independent Medical Examiner (IME) compared with a treating specialist) is not evidence of a demonstrable error per se, it cannot be disregarded that the AMS has substantially overstated the factual reality of her social functioning.

·        The AMS erred by concluding she has more stable/functional relationships than she has in reality, and that she was more capable of social and recreational activities than she is.

·        The PIRS ~~class~~ 3 descriptors for social and recreational activities and for social functioning were more accurate in view of the correct history and treatment records.

·        In terms of the MAC (social and recreational activities), the AMS recorded that the appellant has "regular social outings" and will "socialise at a restaurant every two weeks". This was not correct, and did not even vaguely resemble the records and notes of Dr Smith over the span of his treatment of the appellant. On its face, this finding stood out starkly as an error on the face of the MAC, as it was far outside the body of evidence before the AMS.

·        Taking into account Dr Smith's records and report and the appellant's lived experience and direct evidence, it is apparent that there has been a demonstrable error in the application of the PIRS criteria.

·        The AMS did not made an adjustment for treatment, although the Guidelines make clear that it is appropriate to make a 1-3% adjustment for treatment in some circumstances.

·        The Guidelines as they relate to Psychiatric Injuries note "Effects of Treatment", and accordingly it is appropriate to infer that treatment effects must be considered as part of the WPI assessment process.

·        The AMS made positive findings of the use of medications to moderate the appellant's symptoms and recorded that the appellant takes Quetiapine 50 to 300mg each night and Vortioxetine 20mg daily. The AMS noted that the appellant's sleep is managed by the use of medications.

·        Dr Smith's records make clear that the appellant’s condition is, to a very great degree, managed heavily by the careful prescription of medication. Dr Smith in his report of 7 August 2020 stated the worker was being carefully managed through Aripiprazole, Quetipaine, Dothiepin and had shifted to Brintellix to manage her mood. Dr Smith remarked "she is adherent to medication as prescribed."

·        There was no question that the AMS was aware of the medication use and ought to have turned his mind to the Effects of Treatment as the Guidelines require. It is possible that the AMS has simply elected to award no impairment, however that cannot be determined because the AMS has failed to include his reasoning.

·        It is a long standing principle of administrative law that the absence of reasoning will be prima facie a demonstrable error, since it does not permit of analysis of the correctness of the exercise of the AMS' discretion - the appellant readily accepting that the AMS has the discretion to award 0% WPI, but a corollary of that discretion is an obligation to explain why.
·        The AMS has erred and that the MAC should be revoked. In the circumstances, the extent of treatment effect is not readily apparent without the benefit of further examination, the appellant seeks the following orders: The MAC be set aside; and the appellant be examined by a member of the MAP.

The respondent’s submissions include the following:
· The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd (Vannini). In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an “error for which there is no information or material to support the finding made – rather than a difference of opinion”. The appellant has failed to address on what basis the MAC is said to contain a demonstrable error for the purpose of s 327(3)(d).
· In terms of the claimed inconsistences, the appellant identified alleged differences in accounts of symptoms and restrictions as provided to the AMS and various other medical practitioners.

·        With respect to the inferences to be drawn from histories in medical reports, this must be approached with a degree of caution (Mason v Demasi [2009] NSWCA 324).

·        In light of the above, and in circumstances where the AMS had the benefit of an examination with the appellant during which he had opportunity to raise the perceived discrepancies directly with the appellant, and also undertook an extensive review of the relevant medical evidence, the appellant has failed to demonstrate any demonstrable error.

·         The history elicited by Dr Bisht under the heading of social history in his report of 14 September 2020, closely mirrors that of the AMS. Dr Bisht records that:
‘I have three very close friends. I have known them for many years. They have always been by my side, in good times and bad times. I do have other friends as well. I would catch up with them every weekend. I would have gatherings at my place as well’.

There was no suggestion that these friendships ceased.

·        The submissions made at paragraph 5 of the appellant’s statement of 10 March 2021 that she has only one friend and has lost all others were inconsistent with the clinical note entry of Dr Smith, who noted that she has ‘a couple of close friends’.

·        The clinical records of Dr Smith ceased at August 2020. Dr Smith’s report, written for the purpose of a WPI assessment, was done in June 2020 and Dr Bisht examined the worker in mid-August 2020.

·        The appellant submitted that the AMS repeatedly took an incorrect history and ought to have relied on the clinical records of Dr Smith. The history taken by the AMS was consistent with the appellant’s own evidence and that given to Dr Bisht.

·        The AMS has not overstated the worker’s social functioning and recreational activities and the AMS was at liberty to use his clinical judgment, considering the history provided by the appellant on contemporaneous examination and the histories contained in the supporting documents to arrive at a class 2 rating for both PIRS categories.

·        In Glenn William Parker v Select Civil Pty Limited (Parker), Harrison AsJ noted that in Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (“Wark”), where it is stated at [33]:
“...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ...”

In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24]).
·        The decision in Parker highlights that when dealing with Medical Appeals, the identification of error as prescribed under s 327(3)(c)(d) of the 1998 Act requires more than the Appeal Panel simply reaching a different opinion from the AMS, where the opinion expressed by the AMS was one which was reasonably available.

·        Having regard to the AMS’s extensive review and discussion of the medical evidence which formed part of the AMS referral, together with his having had the benefit of clinical interview, the respondent submits that the appellant has failed to discharge the onus establishing a demonstrable error. Further, as observed in Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254 (Vitaz) an AMS is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available. Having failed to demonstrate that an alternative conclusion was necessarily available, there can be no criticism that the AMS has failed to give reasons for his opinion.

·        The appellant submitted that the AMS made a demonstrable error by failing to adjust for the effect of treatment.

·        The appellant submitted that the AMS made positive findings of the use of mediations to moderate symptoms, as reflected in the treating records of Dr Smith, and ought to have turned his mind to the Effects of Treatment as the Guidelines require.

·        Section 325 of the 1998 Act prescribes that an AMS address: (a) set out details of the matters referred for assessment, and (b) certify as to the medical assessor’s assessment with respect to those matters, and (c) set out the medical assessor’s reasons for that assessment; and (d) set out the facts on which the assessment is based.

·        There was no requirement for the AMA to make an adjustment for the effect of treatment; rather a MA may increase the percentage of WPI by 1%, 2% or 3% if they accept that effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment and the claimant is likely to revert to the original degree of impairment if treatment is withdrawn. There was no evidence by either Drs Smith or Bisht to this effect.

·        The test for such an addition is not whether her treatment has led to a reduction in impairment, it must have led to an apparent substantial or total elimination of impairment. In the circumstances therefore, if the Panel accepted the appellant’s submissions as regards the various PIRS categories as articulated within her appeal, the respondent does not consider that such an addition for the effects of treatment is appropriate.

·        The appellant further submitted that the AMS ought to have provided reasons why such an allowance was or was not made and this failure demonstrates a demonstrable error.

·        In Workers Compensation Nominal Insurer v Arcaba [2016] NSWSC 1647, the Court found that the AMS was not obliged to explain why he reached a different view to that contained within the material that was before him, and there was no error based on the failure to do same.

·        Further, the AMS is not bound to consider the effects of treatment but rather may do so if relevant, which follows there is no obligation to explain why he has or has not made a discretionary allowance for same.

·        The Appeal should be dismissed and the MAC confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”

In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
In the matter of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to 'social and recreational activities' on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, i.e. whether it goes to ‘self-care and personal hygiene’, ‘social and recreational activities’, ‘travel', ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation.”
The appellant submitted that there was (a) an error in transcribing a response given by the appellant regarding the PIRS categories of social functioning and social and recreational activities, when she did not say what has been recorded by the AMS; (b) the AMS gave a history of recent symptomatology that was manifestly incorrect having regard to the extensive treatment accounts of Dr Clayton Smith, and which therefore constitutes demonstrable error; or alternatively (c) the answer recorded by the AMS was so out of step with the evidence of the appellant over a long period of time and in consultation with Dr Smith, that it constituted a demonstrable error.
The appellant proceeded to argue that the consequence of the AMS failing to accurately record matters relevant to the assessment of two of the PIRS categories and the notes of Dr Smith, was that the AMS made an incorrect overall WPI assessment.
The AMS is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Social and recreational activities

The appellant submitted that the AMS failed to apply the appropriate PIRS criteria with respect to the choice of ratings for social and recreational activities. The appellant argued that the AMS incorrectly rated her as class 2 of “Table 11.2: PIRS - social and recreational activities” and that the AMS should have correctly rated her as class 3 in that category.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: Occasionally goes out to such events without needing a support person, but does not become actively involved (eg. dancing, cheering favourite team).
Class 3: Rarely goes to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn”.
In the PIRS Rating Form, the AMS assessed the appellant as class 2 and wrote: “She has regular social outings with three close friends, her mother and sister. For example, she will socialise at a restaurant every two weeks and attends family gatherings. She avoids activities such as movies.”
Under Present symptoms, the AMS wrote:
“Ms Ibrahim has low mood much of the time.
She has difficulties with attention and memory.
She is irritable and easily aroused anger.
She is generally anxious and suffers panic attacks weekly.
She is bothered by intrusive thoughts relating to her workplace treatment, asking herself questions such as: ‘Why did I lose the job?; Why did this happen to me?; Will I ever find a job again?’
She describes feeling ‘paranoid’, particularly regarding her ex-manager. She also went through a period of hearing voices, a female calling her name which, at the time, she felt was real.
She has had thoughts of suicide, including death by a motor vehicle accident. She is
protected from doing this by her faith but said, ‘Sometimes I pray to God to take me.’
She sleeps well with medication
Her appetite is reduced, and she tends to rely on takeaway food. She has gained 10 kg.”
On page 4 of the MAC under “social activities/ADL”, the AMS wrote:
“Ms Ibrahim finds it difficult to rise in the morning and often stays in bed until 1 PM or 2 PM.

She believes that quetiapine, taken at night, is overly sedating.

After rising, she often visited a friend’s home for coffee. She may visit her mother or sister.

She showers and wears clean clothes daily. She had neglected her appearance for a time, but in the last two months, she has started attending hairdressers and nail salons.
She usually eats fast foods and sometimes misses meals. She has gained weight since leaving work.

She goes out with friends for drives, and visits restaurants with friends about every two weeks. She will go to family gatherings. She has stopped going to movies and other social events away from home.

She is more anxious when driving but does so within the local area. She has driven as far as Queensland to visit a sister, but not recently. She had considered going to Melbourne to visit another sister, but the sister moved to Sydney. She feels that she may be able to drive to Brisbane in the future.

She is close to 3 friends, whom she sees regularly. She is also close to her sisters and mother. However, she has lost many friends because of her social withdrawal. She also has trust issues, feels that she has no worth and that people will hate her. She keeps away from all but her closest friends.

She has subjective difficulties with concentration, attention and memory. She struggles to read with comprehension and tends to lose focus. She watches TV serials, such as comedies, detective shows and romances, but often fails to follow the plots.”
On page 4 of the MAC, under “summary of injuries and diagnoses” the AMS made a diagnosis of a persistent depressive disorder with anxious distress.
In commenting on other medical opinion the AMS wrote:
“On 18 June 2020, treating psychiatrist Dr Clayton Smith, offers an assessment of whole person impairment, determining this at 17%.

My assessment of impairment differs from Dr Smith on the domain of social function where he assesses a Class 3, and I assess Class 2. He writes:

Ms Ibrahim rarely socialises. She typically does so with her mother or sister. She is
apprehensive and preoccupied during social events. She remains quiet and withdrawn and feels inhibited during social activities.

Ms Ibrahim reported to me that she has three close friends she sees frequently, and that she goes out to a restaurant every couple of weeks. This social activity is more consistent with a Class 2.”
In her statement dated 1 December 2020, the appellant said:
“I have two close friends who I visit - they try and encourage me to visit every 2 to 3 days. Shamiran rings me daily and encourages me to visit her home. She also visits me.

Before 2017 I used to socialise a lot, I used to go to gatherings, to parties, out to dinner and even shopping. Nowadays I rarely participate in those activities and I only have limited contact with those friends. I feel like I have tried to push those friends away. I remain withdraw and my friends comment that they can no longer joke with me. I keep thinking people are talking about me or thinking bad thoughts about me.

I see my mother about once a week and I speak to her on the phone. I have a sister in Melbourne who I talk to on the phone.”

The appellant also stated that she would now only vacuum her house every two to three weeks “when my friends are coming to visit”.
Dr Clayton Smith in a report dated 18 June 2020 made a diagnosis of Major Depressive Disorder with anxious mood noted:
“She said her social life is mostly limited to her immediate family. She said she recently had several friends to her house and although she was glad they attended she felt ‘cold inside and wasn't enjoying myself' . She said although she is pushing herself to socialise she said it is no longer enjoyable like it used to be. She said she feels sensitive in social situations and worries that she is pushing people away. She said she often wonders if she is doing something wrong, and if people have not spoken to her for a few days she worries that they are ignoring her.”

Dr Clayton Smith assessed the appellant as being class 3 for Social and recreational activities noting:
“Moderate Impairment
Ms Ibrahim rarely socialises. She typically does so with her mother or sister. She isapprehensive and preoccupied during social events. She remains quiet and withdrawn and feels inhibited during social activities.”

In a report dated 14 September 2020 Dr Bisht noted:
“Mona said – ‘I have been pushing my friends away. I feel like they are thinking bad
about me. now I meet them every few months. If I do go to a gathering now, my body is there but my mind is away from there.

I have to go shopping by myself, and to attend appointments.

I just sit at home most of the time and I watch television or go on Facebook. I am not able to focus for more than a few minutes. I have to read things a few times before it gets through.

My relationship with my family is fine, but they say that I am very quiet these days’.”

Under “Social History”, Dr Bisht noted:
“Mona said –
‘I was living with my mom. Then I moved out of my mom’s place in 2010. I am
staying with my mom right now since my discharge from hospital. It is on a temporary basis.

My sister lives in Melbourne.

I have three very close friends. I have known them for many years. They have always been by my side, in good times and bad times. I do have other friends as well. I would catch up with them every weekend. I would have gatherings at my place as well’.”

Mona said that she is not in a relationship currently. She has been married previously for 6 years. She does not have any children.”
Dr Bisht assessed the appellant as being class 2 for Social and recreational activities noting: “Mona only occasionally attends social gatherings. Even when she goes, she does not actively participate”.
The Appeal Panel considered whether the AMS had erred in making a class 2 rating for social and recreational activities. Dr Bisht rated the appellant as class 2 for social and recreational activities while Dr Smith rated the appellant as class 3 for social and recreational activities. The AMS acknowledged that Dr Smith had provided a different rating and expressed the view that the history he had obtained during the examination was more consistent with a class 2. The Appeal Panel noted that Dr Smith made no reference to the appellant seeing friends and he noted that she only socialised with her sister and mother.
The AMS has provided a detailed assessment which was consistent with the history obtained by Dr Bisht and reasonably consistent with the appellant’s statement dated 1 December 2020. The history obtained by the AMS, which was set out in paragraphs 48,49 and 51 above, was more up to date and more extensive than that given by Dr Smith in his report of 18 June 2020.
The entries referred to by the appellant in Dr Smith’s clinical records were:
(a)     “Date: 7/8/20 Entry: Depressed, upset all the time, crying over the smallest things ...Socially isolated, sister has moved back to Melbourne, missing her, was leaning heavily on her sister for support. Has a couple of close friends but I feel like a burden on them and everybody, I wish that god would take [me]."

(b)     "Date: 11/3/20 Entry: Trouble sleeping, wants to not wake up and continues sleeping. Had several panic attacks and used Valium. Passive suicidal ideation. No energy. No motivation. Only social activity has been on social media, saw a friend yesterday, Mother tried to make her come out with her but she doesn't want to socialise. ‘I can't trust people’, feels paranoid, I feel like everyone is against me that they don't like me ... "

(c)     “Date: 22/4/20 Entry: Generally isolating at home, too tired to go out. Too scared to go to the hospital for her kidney monitoring. Getting online shopping. Not getting out at all ...Occasional phone calls with people, otherwise no social contact."

(d)     "Date: 20/5/20 Entry: Been out twice to a friend's and mum's house."
Some of these entries would have been during the period when people in NSW were in lock down because of the pandemic and therefore should be treated with some caution. The final entry was dated 7 August 2020, that is, about six months before the examination by the AMS. Dr Smith did, however, make a number of references to the appellant’s social activities in these clinical records. In particular, on 22 April 2020, he reported that the appellant was talking to her mother, her sister and a couple of close friends. On 20 May 2020, he noted that she had been out twice to a friend’s and her mother’s house. On 10 June 2020, he noted that she went to a birthday party on Saturday, had a small gathering at her house for a few friends yesterday and although she was glad they came was not enjoying herself. In the final entry on 7 August 2020, he noted that she had a couple of close friends but felt like a burden on them.
The AMS noted that the appellant often visited a friend’s home for coffee and would visit her mother. He reported that she went out with friends for drives, visited restaurants with friends about every two weeks, would go to family gatherings but had stopped going to movies and other social events away from home. On balance, the Appeal Panel considered that the history was consistent with class 2.
Based on the evidence before the Appeal Panel, and for the reasons provided by the AMS in the MAC, the Appeal Panel considered that it was appropriate for the AMS on the evidence to make an assessment of class 2 for social and recreational activities.

Social functioning

The appellant submitted that she was more appropriately classified as class 3 for social functioning.
Pursuant to Table 11.4 of the Guides, the examples under social functioning , are described as follows:
Class 2 - "Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 - "Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”.
The AMS rated the applicant as class 2 in this category noting:
“She has maintained close friendships with three women but has lost other friends because of social withdrawal and said, ‘I have pushed them away.’ She remains close to her family”.

The applicant in her statement dated 1 December 2020 wrote:
“I had a relationship last year but I pushed him away because I did not trust him. When he wanted to go out I always wanted to stay home. When he was talking to me I blocked him out and did not listen. The relationship lasted about 6 months. It ended because he said ‘I need someone more alive, someone prepared to do things, and I cannot see that in you’.
I am worried I am not going to find anyone else and that I will be on my own for the rest of my life”.
Dr Bisht assessed the appellant as being class 2 for social functioning noting: “Mona still has a good relationship overall with her family, though she is distant from them.”
Dr Clayton Smith assessed the appellant as being class 2 for social functioning noting:
“Mild Impairment
Ms Ibrahim perceives others to be upset with her and feels unworthy of their company. She has lost some friendships, particularly those associated with her workplace. Her main social contacts are her immediate family. She is anxious and sensitive in social settings.”
The Appeal Panel considered whether the AMS had erred in making a class 2 rating for social functioning.
Both Dr Bisht and Dr Smith assessed the appellant as class 2 for social functioning.
The Appeal Panel considered that the history obtained by the AMS was consistent with class 2 rating for social functioning. The appellant had lost some friendships but still retained friends and had a good relationship with her sister and mother. She goes out with a few friends on a regular basis.
Based on the evidence before the Appeal Panel, and for the reasons provided by the AMS in the MAC, the Appeal Panel considered that it was appropriate for the AMS on the evidence to make an assessment of class 2 for both social and recreational activities and social functioning. The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in those PIRS categories.

Effects of Medication

The appellant submitted that although the AMS had noted the effect that pharmaceuticals had in controlling the appellant's insomnia (among other symptoms), he neglected to apply an adjustment for treatment as was required pursuant to paragraph 1.32 of the Guidelines. In the alternative, the AMS failed to give reasons for failing to apply an adjustment based on the AMS' discretion.
Paragraph 1.32 of the Guidelines provide as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the Claimant’s permanent impairment but the Claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage using the Combined Values chart”.
Paragraph 1.32 of the Guidelines is in the introduction under “Part 2 – Principles of Assessment” and does not only apply to psychiatric injuries.
The Guidelines at 11.8 do relate to Psychiatric Injuries but the paragraph headed "Effects of Treatment", is concerned with whether the injury is stable and not with the estimation of impairment.
The AMS noted that the appellant had been prescribed Quetiapine 50 to 300mg each night and Vortioxetine 20 mg daily.
It was clear that the appellant used medication which had some effect on her condition and enabled her to sleep well. However, the Guidelines provide that there must be substantial or complete elimination of impairment for an assessor to increase the percentage of WPI. There has not been a substantial or complete elimination of permanent impairment in this case and therefore the assessor cannot make an adjustment for effects of treatment. The Appeal Panel noted that neither Dr Smith nor Dr Bisht made an adjustment for effects of treatment.
In Vitaz the Court held that no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available. Having failed to demonstrate that an alternative conclusion was necessarily available, there can be no criticism that the AMS has failed to give reasons for his opinion.
The Appeal Panel considered that no adjustment for effects of treatment could be made in this case as there has not been a substantial or complete elimination of permanent impairment. Further, the Appeal Panel did not consider that the failure to give reasons for not applying an adjustment for the effects of treatment was an error.
In conclusion, the Appeal Panel did not consider that a demonstrable error in the assessments of the AMS.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 February 2021 by the AMS should be confirmed.

Carolyn Rimmer
Member

Professor Nicholas Glozier
Medical Assessor

Dr Patrick Morris
Medical Assessor

16 June 2021